Lumukana v Paruku [2000] SBHC 87; HCSI-CC 305 of 1999 (7 April 2000)

CC 305 99 HC

IN THE HIGH COURT OF SOLOMON ISLANDS

Civil Case No 305 of 1999

NELSON LUMUKANA and REDDLEY LAPO

V

JONATHAN PARUKU and ELIJAH PARUKU

High Court of Solomon Islands
(Muria CJ)

Civil Case No. 305 of 1999

Hearing: 10 December 1999
Ruling: 7th April 2000

A. Nori for Plaintiffs
S. Watt for Defendants

MURIA CJ: This is an application by the defendants seeking an order that the High Court lacks jurisdiction to hear and determine the matters set out in the plaintiff’s Statement of Claim. The plaintiffs’ claim damages for trespass, an order for eviction of the defendants, families, relatives, dependents and tribal members from Kulu or Kibi Pare Lands; and an order restraining the defendants, families, relatives; dependents, servants, agents and tribal members from entering, residing in and carrying out development activities in the said Land.

In support of their application, Mr. Watt of Council for the defendants agued that at the hearing before the Local Court the issue was one of the geneology and not ownership of customary land. So that, unless the Local Court makes a final determination as to ownership of the customary land concerned, the High Court lacks the jurisdiction to make any finding on the issue of trespass to land in the present case.

On the other hand, Mr. Nori of Counsel for the plaintiffs contended that although the hearing before the Local Court on 26 July 1982 did not make any decision on the question of ownership of the land in question, that, submitted counsel, was because the ownership of the land was not in issue and as such there was no need for the Local Court to deal with that issue. However, Mr. Nori argued that the determination of the question of geneology of the parties was closely linked to the land as acknowledged by the CLAC in this case. Consequently, Counsel argued, the decision of the Local Court and CLAC in favour of the plaintiffs confirmed their tribal rights over the land in question. Therefore, argued Counsel, this Court must have power to deal with the matters stated in the plaintiffs’ Statement of Claim.

The Claims

By their amended Writ of Summons and Statement of Claim, the plaintiffs, inter alia, claim:

“1. damages for trespass

2. an order for the eviction of the Defendants, their relatives, family members, dependents and tribal members from Kulu and or Kibi Pare Land;

3. an order to restrain the Defendant, their relatives, family members, dependents, agents, servants and tribal members from entering, residing in and carrying out development activities in Kibi Pare land;”

Undoubtedly, before the plaintiffs can obtain damages for trespass and an order for eviction, they would have to establish their ownership over the land in question. As to an order of injunction to restrain the defendants, that can be granted as an aid to resolving the issue of ownership where that issue is in dispute. The Local Court has exclusive jurisdiction to determine the question of ownership of the customary land while the High Court retains the jurisdiction to grant injunctive relief even in “matters and proceedings of a civil nature affecting or arising in connection with customary land,” such as disputed ownership of customary land. See Grandly Simbe -v- East Choiseul Area Council & Ors (1999) Civ. App. 8 of 1997 (CA) (Judgment dated 9 February 1999).

Assuming for the moment that the issue of ownership of Kulu land which is part of Kibi Pare Land is in dispute in this case, the Local Court and Customary Land Appeal Court would have jurisdictions to hear and determine that issue before the High Court can consider the question of damages for trespass to the customary land and an order for eviction of the defendants from the said land. It may well be that the plaintiffs having brought the claims before this Court, have now faced the defence of lack of jurisdiction on the basis that ownership question over the land had not been settled in the appropriate Courts. It does not, however, necessarily preclude the plaintiffs from bringing their claims to this Court. After all, their claims are for damages for trespass and an eviction order which are reliefs within the power of this Court to grant provided, in this case, the ownership issue had been settled by the Local Court and Customary Land Appeal Court.

Ownership of Kibi Pare Land

The central issue here is whether the ownership of Kibi Pare Land had been decided upon by the Local court. The plaintiffs contention was that while the Local Court and Customary Land Appeal Court did not specifically decide on the issue of ownership of the land, the dispute between the parties was about the rights over the land in question and that the determination by those Courts of the geneologies of the parties was for the purpose of ascertaining the question as to who had rights in the land. The defendants, on the other hand, relied strictly on the wording of the decisions of the Local Court and Customary Land Appeal Court which decided that Nelson Lumukana was of the Kibi Pare Tribe while Wilson Katovai was descendant of the Kibisiamubara Tribe.

The formal decision of the Local Court, and confirmed on appeal by the Customary Land Appeal Court, was on the geneology of the parties and no reference was made in that decision as to the ownership of Kulu/Kibi Pare Land. As such, it was contended on behalf of the defendants that the question of ownership of the land had not yet been ascertained by the Local Court and Customary Land Appeal Court and so the High Court could not have jurisdiction to deal with the question of trespass upon the land in question. The plaintiffs’ contention in this case is that the determination by the Local Court of the plaintiffs’ geneology as being that of the Kibi Pare Tribe meant that the Kibi Pare Tribe were the owners of the Kibi Pare Land. That may well be true and it is a strong argument for the plaintiffs when the issue of ownership of the land is considered. However, the suit or the action before the Local Court was brought by Wilson Katovai claiming that he and his people were the real descendants of the Kibi Tribe and challenged Nelson Lumukana to establish his geneological connection with the Kibi Tribe. The decision of the Local Court was that Nelson Lumukana was a descendant from the Kibi Pare Tribe. The appeal to the CLAC could only be brought against the actual order of the Local Court and not against any expression of opinion in the judgment. As was pointed in Commonwealth of Australia -v- Bank of NSW [1949]2 All E R 755, at 762:

“.....an appeal is the formal proceeding by which an unsuccessful party seeks to have the formal order of a court set aside or varied in his favour by an appellate court It is only from such an order that an apeal can be brought”

The only formal order made by the Local Court in this case was that the present plaintiffs were of the Kibi Pare Tribe and Wilson Katovai was of the Kibi Siamubara Tribe.

Counsel for-the plaintiffs relied on the case of Patel -v- W.H. Smith (Eziot) Ltd [1987] 1 WLR 853; [1987] 2 All E R 569 cited in the Simbe case, for the proposition that a landowner whose title is not disputed is prima facie entitled to an injunction to restrain intrusions onto his land. Firstly, that case was concerned with a registered land and even if there was no dispute as to his title, the register would speak for itself. Secondly, in that case the question of ownership was raised in Court but not disputed. In the present case the issue of ownership was not raised in Local Court nor was it debated in the formal proceedings of the Court and it certainly was not part of the formal order of the Local Court. The most, in my view, that Patel could assist the plaintiffs is to rely on it for the purpose of seeking injunction in this Court to restrain the defendants from further intrusion onto the land while the Local Court determines the ownership issue provided, of course, the plaintiffs show by some evidence that they had prima facie right over the land in question. It does not help the plaintiffs to confirm their ownership over the land.

Conclusion

In the light of what had been said, what should be the necessary order in this application? In their notice of motion, the defendants sought an order that the Statement of Claim be struck out on the basis that:

1. (i) It has not been properly issued in the High Court and properly served thereby on the Defendants in accordance with the High Court (Civil Procedure) Rules, 1964;

(ii) the plaintiffs’ lack the necessary standing to seek the Orders set out therein;

and

(iii) this Court lacks the jurisdiction to make determination upon and to grant the orders sought therein.

However, they only relied on paragraphs 1 (ii) and (iii), sub paragraph (i) being abandoned. In fact mostly, Counsel argued the case based on the contention that this Court lacks jurisdiction to make the orders sought in the Statement of Claim.

In the light of what I have said, the Court cannot make the Order sought in paragraph 1 (ii) on the basis that it has not been established nor was it argued. In relation to paragraph 1 (iii), unless the question of ownership of the land has been established, this Court would not have the power to deal with the issue of damages for trespass to the land in question.

The parties to bear their own costs.

(Sir John Muria)
CHIEF JUSTICE